Wednesday, February 25, 2009

Kirk Makin canvasses the future of legal ethics in Ontario in a thoughtful article in today's Globe:

The first task for proponents of the professionalism movement has been defining what they mean. By consensus, it appears to boil down to civility; mentoring; continuing education; maintaining client confidentiality; avoidance of conflicts; and maintaining independence.

"It has to do with the notion that being a lawyer does not mean simply holding a job," said Ontario Court of Appeal Judge Stephen Goudge, a moving force in the campaign. "This is about being part of a profession that is given a stature and a certain prestige and, in return, includes a significant service component."

...The key question for the professionalism movement lies in whether counsel - not only academics and law society benchers - also buy into it. The answer is likely to hinge on whether the movement maintains a sense of realism about life in the legal trenches.

Valentine's Day has come and gone, but the question psychologist Fiona Travis raises is a perpetual one: Would someone have to be crazy to marry a lawyer? "It's not that lawyers lack relationship-building skills," she writes in a post at the blog Lawyer Avenue.

"But, overworked, overburdened and squeezed by time -- and now, the worst downturn in two decades -- lawyers do exhibit communication and intimacy breakdowns peculiar to their education, their professional training and work environment."

Via the Toronto Star, a 20 year-old Port Hope man has been nabbed under Ontario's new smoking laws.

His offence?

Smoking in his vehicle in the presence of a 15 year-old smoker:

A curious situation arose Saturday, when 20-year-old Port Hope resident Tory Ashton was given a $155 ticket for smoking in his vehicle with a person under the age of 16 present.

As the police officer was writing the ticket, the 15-year-old passenger – the reason the car was stopped – hopped out of the car and lit her own cigarette. Legally.

And the officer could do nothing about it.

....Saturday's incident was one of the first cases of a driver fined under the law, which took effect Jan. 21, designed to protect young people from highly concentrated levels of second-hand smoke.

Ashton said he was frustrated he was given the ticket.

"She's 15, she smokes also and ... they're giving me the fine," he told CTV.

Adding to the discussion (with an exercise in happy hyperbole), CTV news reports that local police apparently worry that public unrest may be just around the corner:

PORT HOPE, Ont. -- It's only a matter of time before someone "snaps" after being pulled over under Ontario's new law forbidding smoking in a vehicle carrying a minor, a police officer said Monday in response to a quirk in the legislation that was made evident during a weekend incident.

"People got mad enough when they couldn't smoke in bars anymore or bingo parlours," said Sgt. Bryant Wood, a police officer in the eastern Ontario town of Port Hope."Now you're telling them they can't smoke in cars. At some point somebody's going to snap along the way here."

In addition to the records already listed in this policy, members of the public shall have remote access to those court records, or portions thereof, listed in this subsection:

* the electronic version of any factum on an appeal filed on or after February 9, 2009, subject to the following conditions. An electronic version of the factum must be available. The factum must not be subject to any limitation on access by court order or law, or as set out in paragraph 3.4 of this policy. Where a factum is redacted as set out in paragraph 5.2 of this policy, only the redacted electronic version will be available for remote access.* webcasts of appeal hearings on or after February 9, 2009, provided that the digital recording of the appeal hearing is available and is not subject to any limitation on access by court order or law or as set out in paragraph 3.4 of this policy.

An Ontario judge yesterday blocked an attempt to forcibly send a Toronto child for deprogramming treatment in a controversial parental-alienation program in California.

Madam Justice Thea Herman of the Superior Court became the first judge to rule against the controversial treatment orders, overturning a 2008 arbitrator's order that the 14-year-old boy be coercively treated.

"The remedy of the Family Workshop, as acknowledged by the arbitrator and the parties, is an extreme one," Judge Herman said in her ruling. "That means that caution should be exercised in awarding such a remedy."

Treatment at the clinic - founded by Richard Warshak - involves isolating a child from the parent who is identified as having poisoned his or her emotions toward the other parent. Therapists then attempt to undo the child's hostile feelings.

Of particular interest, the current Globe article claims that the cost of the four-day programme is $40,000.

The case, as reported by the Globe, should not be interpreted as a repudiation by the Court of the Warshak programme. Rather, the Court appears, on the specific facts of the case, to have determined the treatment to be inappropriately extreme for the specific family involved.

For more on Dr. Warshak's views and therapeutic approach, see this June 2008 feature from Macleans: Interview with Richard Warshak. A short excerpt from the Q & A formatted article is below, discussing an earlier Ontario ruling:

Q: In this case, Judge Turnbull seemed impressed by your proposed remedy. His ruling caused a bit of a stir in Ontario. He ordered this boy be flown, against his will if necessary, to this program you helped design, the Family Workshop for Alienated Children. Would that be an unusual ruling?

A It's becoming more common as the courts learn about the damage to children in the present and on. Particularly when judges learn they hold the power to help the family, judges are more willing to tell kids that they don't get to choose their parents just as they don't get to vote or drink alcohol. Not only do the kids have to stop acting like entitled adults, the judges tell the grown-ups to stop acting like kids.

Q: A newspaper report of that case calls the program "a facility that deprograms children." Is that how you would describe it?

A: Not at all. This is a gross misconception of the work we do. Our program teaches children how to stay out of the middle of adult conflicts, and how to maintain a compassionate view toward each parent. We teach children to think critically. When children learn how to see a problem from different perspectives they usually begin to heal their relationship without having to acknowledge that they had been treating the parent with contempt and without having to apologize for it. They begin relating in a more positive way.

Q: Yet I understand that, to varying degrees, children can be forced to attend, either through a court order or by being physically escortedto the workshop. This is after the courts have already said they're going to make them live with a parent they've already rejected. It sounds like a recipe for disaster.

A: Again, what we have going for us is that the child really has an underlying wish to get out of this bind. I should clarify that often it is not the judge who orders the child to attend the workshop. Rather, the judge awards decision-making authority to the rejected parent who may then choose to enrol the child in the program, just as the parent is free to make other decisions regarding the child's health and education. Our program is designed to jump-start the reconciliation and offer a safe way to contain a child's anxiety and conflict. It's a misconception that the children are restrained. No child has been brought to me in restraints, and I would never work with a child under such conditions. They are oftentimes lectured by the judge about the necessity that they repair the damaged relationship. Once they understand they no longer hold a power that they should have never been given in the first place it's remarkable how much they co-operate.

...Q: You've got some major parental repair work to do as well then?

A: We do. And in truth we're not as successful with [alienating] parents as we'd like to be. We have much more success in healing the damaged relationship the child has with the parent who was rejected. We have had success with the other parent sometimes but in other cases they have no interest in co-operating. In the most unfortunate situations, the other parent will end up rejecting the child themselves. "If you're not on my side you're against me." Even if the other parent does not change their attitude the children can learn enough often to withstand that kind of influence without succumbing to it.

Q: They're inoculated?

A: Yes. We give the children the tools to be children and to stay out of adult conflicts.

...At the moment, he has libel suits going against David Segal of the Washington Post and Harvey Berkman of the National Law Journal. He apparently feels victimized by Jewish journalists because (he wrote recently), "as a Jew with close ties to social as well as economic conservatives--and as a Jew who believes in Christ--I guess they perceive me as a threat to the liberal Jewish creed, a kosher Uncle Tom."

Taking a deposition from former Clinton aide Paul Begala, he pressed Begala for the name of his priest in La Porte, Texas. In another deposition, with former Clinton aide Harold Ickes, he made Ickes so mad that he threatened to piss on Klayman's rug. Klayman once sued his own mother. A character on NBC's West Wing named "Harry Klaypool," who heads a group called "Freedom Watch," is apparently based on Klayman.

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a lawsuit against newly sworn-in Secretary of State Hillary Rodham Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel, (Rodearmel v. Clinton, et al., (D. District of Columbia)). The lawsuit maintains that Mrs. Clinton is constitutionally ineligible to serve as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.

Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whoever occupies the office, increased during the term for which the Senator or Representative was elected.

Specifically, article I, section 6 of the U.S. Constitution provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." The text of the provision is an absolute prohibition and does not allow for any exceptions.

According to Judicial Watch's lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation. The lawsuit notes that Congress attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing notably Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.

Well, that didn't take long...

- Garry J. Wise, Cancun

Update: February 9, 2009

More on Mr. Klayman's plans "to give the Obama socialists hell in the next four years” and his ongoing rift with Judicial Watch here

Canadian Press reports, via CTV, on a a New Jersey Superior Court's groundbreaking decison Friday, permitting the divorce of a lesbian couple that had been married in Victoria, B.C.:

TRENTON, N.J. -- Gay marriages performed elsewhere are recognized in New Jersey for the purpose of divorce, said a ruling Friday by a judge presiding over a case in which a lesbian couple married in Canada are seeking to split.

The wider implications weren't immediately clear but Superior Court Judge Mary Jacobson said New Jersey has a long history of recognizing marriages that are valid where they were performed.

...The state attorney general's office had opposed the request, the first of its kind in the state, and was seeking to have the couple's marriage dissolved as if it were a civil union. Officials have not said whether the state will seek an appeal.

...Courts in a handful of states, including New York, Oklahoma, Rhode Island and Texas, have wrestled with the question in the last few years. In most cases, judges have ruled the state would not grant the divorces because the states do not recognize same-sex marriage.

There have been a flood of recent decisions in U.S. courts regarding same-sex marriages and unions:

a decision of the U.S. Ninth Circuit Court of Appeal holding that a denial of government employment benefits to same-sex spouses pursuant to the Defence of Marriage Act is unconstitutional. The Defense of Marriage Act, passed in 1996, denies federal recognition of state marriages to same-sex couples.

a decision of the State of New York Supreme Court, Appellate Division dismissing a challenge to a determination by the State's Department of Civil Service to "recognize the parties to a same-sex marriage as spouses if their marriage were valid in the jurisdiction where it was solemnized, thereby allowing such spouses of state employees access to the benefits provided under the New York State Health Insurance Program."

On the political front, the New York Times reports today that no legislation to legalize gay marriage in New York State is likely in 2009:

New York Senate Majority Leader Malcolm A. Smith said that he did not believe legislation to legalize marriage between same-sex couples had enough support to become law in New York this year.

Following up on the Ontario Superior Court's recent decision on parental alienation in A.G.L. v. K.B.D. (our report from last week is here), the Globe and Mail takes a critical eye to American counselling centres that purport to provide treatment to the "children of alientation."

Parental alienation centres in the United States are using unproven "quackery" to deprogram children ordered into their care by well-meaning Canadian judges, a leading Ontario child psychologist has charged.

Peter Jaffe says the programs may even damage children by destroying overnight their primary support bulwark: the alienating parent whose care they have been under.

"It is not a good thing if a child has bonded to an alienating parent, but disrupting that child and pulling them away from whatever sense of security they have may end up being more harmful than good in the long run," said Dr. Jaffe, a professor at the University of Western Ontario in London.

"When you're going to provide a treatment, you have to know what the unattended consequences or side effects are," he said. "You may be solving one problem but creating a whole host of new problems."

The deprogramming issue erupted last week after a Toronto judge forcibly removed three girls from their mother and sent them for treatment to a U.S. centre in an undisclosed location. It was at least the third time that an Ontario judge has taken the extreme measure in the past year.

I'm not sure we know enough about these programmes to truly evaluate their long or short term implications. I am inclined to find them conceptually suspect, at very least.

To add a bit of perspective, however, I'll note that in Ontario, the forcible removal of children from emotionally destructive environments and subsequent enrolment of such children in state-mandated counselling programmes is not entirely a radical or new development.

In child protection matters, our Children's Aid Societies have a statutory mandate to do exactly that - in extreme circumstances where less intrusive interventions have been to no avail. This is the case, irrespective of how deep the attachment of affected children may be to their problematic caregivers.

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(f.1) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;

Is a child who is on the receiving end of unrelenting parental alienation a "child in need of protection?" At the extremes, probably.

The question, however, of whether the so-called U.S. deprogramming centres are an effective cure is an open one. I'd like to see research and data on this, before jumping to any conclusions.

And by research, I mean objective, comprehensive data on the long-term psychological well-being of children treated in these therapies. I was not swayed by the narrowly-defined study of a clearly tiny sample group by an involved clinician with a potential financial interest in the outcome, as was documented in an article yesterday at Parent Central (h/t Tamara E.):

An intensive four-day program for children who've been brainwashed by one parent into hating another is showing signs of success, with more than 80 per cent repairing their relationship with an alienated mother or father, according to new research presented by its lead clinician.

The results, made public yesterday and currently undergoing scientific peer review, show that 17 out of 21 children who have completed the program after being removed from the grip of a "toxic" parent forged good relationships with the other parent that continue more than two years later.

"I think part of it is the children are relieved; they never really wanted to be soldiers in this war between their parents," Richard Warshak, a University of Texas psychologist who runs the program, told lawyers attending the Ontario Bar Association's annual conference yesterday.

Warshak's work was cited last month in a Toronto judge's ruling that stripped a mother of custody of her three daughters after the woman spent more than a decade trying to poison them against their father.

...Warshak won't say how much the program costs but does call it "expensive" – equal to 1 1/2 to two years of conventional therapy.

...Although 130 children have completed the program, Warshak's research looked only at the 11 families he has treated himself. Seven of the alienated parents were mothers; four were fathers.

Beyond that, I can't deny that a made-in-Canada solution - one that would allow our courts genuine ability to scrutinize, supervise and regulate "anti-alienation" therapies - would leave me considerably less frosty about this form of intervention.

Canada is more litigious than most believe, according to a study commissioned by leading Canadian law firm Fasken Martineau. Over 40% of respondent companies indicated they were involved in some form of litigation over the prior year.

Labour and employment issues rank the highest in the type of dispute that most concerns Canadian companies according to the Fasken Martineau study. Contracts, personal injury and product liability rank second, third, and fourth, respectively.

Recognizing the validity of a same-sex marriage between New Yorkers contracted in Canada, a Manhattan surrogate has ruled that a man is entitled to inherit the entire estate of his deceased male partner. The decision comes months after a Queens surrogate took a more cautious approach in holding that the validity of gay marriage had not been "definitely determined," ruling that the deceased partner's parents had to be included in probate proceedings.

In a brief opinion, a Surrogate Judge in New York recognized a Canadian same-sex marriage for probate purposes, declaring the surviving partner the "surviving spouse and sole distributee" and thus not requiring process to other members of the decedent's family. A copy of the Kristin Booth Glen's opinion, published in the New York Law Journal, page 27, today, is available here and the front-page article is available here, and continued here.

Based on these two decisions, it appears for the time being that New York State does indeed recognize the validity of Canadian same-sex marriages. The true test, however, may come when the State's courts determine whether they have jurisdiction to grant a same-sex divorce to a couple legally married in another jurisdiction.

[The court] held that it lacked jurisdiction to grant a divorce to a same-sex couple that married in Massachusetts, but had moved to that State. In short, the court declined jurisdiction because Rhode Island does not recognize same sex marriages.

The Ontario Human Rights Tribunal has ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of Wallace damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

About WISE LAW BLOG

Wise Law Blogfeatures timely articles on legal developments in Canada and the United States, along with commentary on Canadian politics, American politics, technology and noteworthy current affairs.

Launched on April 5, 2005, Wise Law Blog also highlights key decisions of Canadian courts, with focus on Ontario Family Law, Ontario Employment Law and other areas of interest.

Garry J. Wise is primary contributor to Wise Law Blog. He is a Canadian litigation lawyer who practices with Wise Law Office,Toronto. He is a graduate of Osgoode Hall Law School and was called to the Ontario Bar in 1986.

Garry's colleagues at Wise Law Office, as well as occasional guest bloggers, also contribute to Wise Law Blog.

Follow Us:

Follow by Email

Terms of Use

The articles and comments on Wise Law Blog are intended to provide general information on current issues and developments in the law. They are not intended to provide legal advice. Readers should not rely upon or act on information in this, or any blog without seeking legal advice as to the matters of specific concern to them. No solicitor and client relationship is created or can be created by accessing, reading or commenting upon any post at this site.

Wise Law Blog is not responsible for and does not necessarily agree with the contents of comments posted by readers of this blog. Such comments represent the personal views of the commenters only, and are included on this blog in the interest of promoting public discourse and a free exchange of ideas. We reserve the right to decline or delete any comment posted on this site which we, in our sole and absolute discretion, deem inappropriate for publication on this site.

CBC | Canadian News

CBC | Technology & Science News

CityNews: Top Stories

MSNBC.com: Top MSNBC Headlines

BBC News | News Front Page | World Edition

Wise Law Blog, (c)2005-2010 Garry J. Wise and Wise Law Office, Toronto. All rights are reserved. Permission for reproduction and/or republication of any portion of this publication for solely non-commercial purposes is hereby granted provided any such non-commercial use shall include: (a) credit to the original author(s) thereof; (b) printable, embedded hyperlink to original Wise Law Blog post url. Reproduction and republication of any portion of this publication for commercial purposes is expressly prohibited without the permission in writing of the author(s).